The Limits of Punishment

Over the past decade, some jihadist groups have demonstrated the ability to exploit dysfunctional relations within and among local populations, elites and states to gain control over large territories in fragile and conflict-affected states.[1] Territoriality has enabled groups like the Islamic State (ISIS), Al-Shabaab and Boko Haram to exercise coercive control over local populations. Under these conditions, while some locals may willingly join the group out of a genuine commitment to a transnational theocratic ideology, existing evidence suggests that many who join are instead driven by locally-specific considerations, pressures, or needs—including economic subsistence and self-preservation. Others may be coerced into playing supportive civilian roles, such as cooks, drivers, “wives” and, in cases of sophisticated state-building groups such as ISIS, bureaucrats working for institutions that govern, discipline, and extract resources from the civilian population, including courts and taxation departments.[2]

In recent years, counterinsurgency campaigns have in several states led to the successful recapture of territory from jihadist control, creating windows of opportunity for stabilisation and reconciliation. However, in many cases, efforts to stabilise and extend state authority into these territories appear to have failed to fully take account of the ways in which territorial jihadist groups use and exploit civilians. After a jihadist group is pushed out, the state-affiliated armed actors that move in, hold power locally and take responsibility for security, resource distribution and governance, in many cases view the local population with generalised suspicion, as potential collaborators or sympathisers with the jihadist group that formerly controlled their land. Some observers have raised concerns that processes for determining individual association with jihadist groups tend to be opaque, at times lack due process, and risk giving rise to excessively punitive policies. This, in turn, could fuel new waves of grievances that jihadist groups are known to exploit.

In particular, there are indications that current approaches in states including Nigeria, Iraq and Somalia struggle to adequately distinguish between: individuals who provided jihadist groups with material or other support under duress, and those who voluntarily joined a group; between those who joined for ideological reasons and those who joined due to locally-specific motivations or pressures; between those who played civilian roles and those who played combatant ones in a group; between combatants who committed serious crimes and those who committed minor ones; and between collaborators and their unaffiliated relatives and dependents. Further, the concept of voluntariness becomes more complex in a situation where an armed group controls the major levers of power and/or basic services in a territory.

Failure to differentiate among these individuals can lead to over-inclusive counter-terror policies that may result in the targeting or detention of individuals who do not in fact pose a threat to national security. In Iraq, for instance, individual association with ISIS appears at times to be determined based on hearsay, and the punishment for any association, even a tangential one, can be extremely harsh.[3] Men and women fleeing conflict areas may be separated from their families and detained indefinitely while being screened for potential ties to armed groups.[4] In other countries, including Somalia, defection-oriented amnesty offers linked to DDR programs do, on paper, set out to make these distinctions. In practice, however, at least some of these amnesty programs appear to be implemented “in a haphazard way as a political tool, not part of a systematic reconciliation effort.”[5] DDR facilities, meanwhile, can resemble involuntary detention centres (as with some of Somalia’s facilities for Al-Shabaab defectors) or conflate victims and perpetrators (as in the case of DDR facilities in Niger that fail to distinguish between those who defected and those who escaped from Boko Haram).[6]

In brief, there may be a risk that indiscriminate and overly punitive policies may obstruct individuals’ trajectories out of, or out from under, jihadist groups, and hinder reintegration and reconciliation efforts in areas where these groups have been pushed out. Stabilisation and reconciliation in these “post-jihadist” territories will require a broad range of tools, including the (re)instatement of infrastructure and service delivery, and most importantly, measures to build the legitimacy and effectiveness of state institutions in ways that will earn the trust and respect of local populations. By allowing for creative amnesty and accountability formulas that distinguish among individuals who played different roles and under different conditions, transitional justice methods created in countries as diverse as Colombia, Nepal and Uganda (if applied in ways that are contextualised for different realities) could form a key component of stabilisation and reconciliation.

As such, this research project will seek to understand what elements of transitional justice practice could be adapted to post-jihadist contexts. It will draw the analysis primarily from three in-depth, fieldwork-based case studies of current approaches to accountability in post-jihadist settings in Iraq, Nigeria and Somalia.[7] In addition, based on desk review and substantive input from experts with experience in a broad range of countries, the study will draw lessons learned about transitional justice approaches in other contexts where non-state armed groups have controlled territory and exercised coercive control over civilians. Insights from the three primary case studies and desk review of broader contexts will be synthesised in a paper with policy recommendations to assist fragile and conflict-affected states and their international partners, including the UN and member states, think through creative approaches to addressing individual amnesty and accountability in post-jihadist settings.

Research Questions

The overarching research question that this project aims to answer is: In fragile and conflict-affected states, what practice in developing transitional justice approaches would be most relevant to handling individuals who have been affiliated, in a variety of roles and under different conditions, with territorial jihadist groups? The final synthesis paper will address the roles and limitations of state authorities, informal authorities, and the UN and member states in supporting the development and implementation of this best practice.

The purpose of the project’s inception workshop will be to finalise supportive research questions to guide the development of an evidence base for the overarching research question. These supportive research questions may – but will not necessarily – include:

What approaches are formal and informal authorities adopting toward individuals who lived under the coercive control of territorial jihadist groups in Iraq, Nigeria and Somalia? [Methodology: Primarily fieldwork-based, with supportive desk review]
What strategies are used to determine whether, and in what ways, an individual has been associated with a jihadist group? What types of evidence and data do states use to evaluate an individual’s ties to a jihadist group, and what are the ways in which such information may lead to biased or inaccurate conclusions about the nature of his or her relationship with the group?
Does the evidence suggest that detainees are at risk of becoming radicalised to violence? Does arbitrary detention create self-fulfilling expectations whereby innocent persons may be more likely to engage in violent and illegal activities post-release as a result of their exposure to injustice? Are prisons corrupt, allowing detainees who can afford to buy their way out to do so?
What alternatives to imprisonment (e.g. plea bargaining, alternative sentencing, amnesty laws, DDR facilities) are being piloted, and is there evidence that they have mitigated the above risks?
How do current approaches to accused individuals impact families and communities? What are the consequences—economic, psychological, and social—of a detainee’s absence from the family unit on his or her relatives? How do stigmas related to having a relative accused of group association affect women and children? Do differences in the way that the three groups in question (ISIS, Boko Haram, and Al-Shabaab) have exercised territorial control lead to different implications for individual affiliation and accountability? For instance, do counter-insurgency policies unjustly penalise civilians associated with groups, like ISIS, that have utilised large civilian bureaucracies?
What are the lessons learned from other regional and historical contexts where non-state armed groups have controlled territory? [Methodology: Desk review and substantive input from experts who have direct experience in developing transitional justice approaches in a broad range of contexts]

How has transitional justice, including conditional amnesty formulas, enabled nuanced approaches to accountability in contexts where individuals may have been associated with non-state armed groups in a wide variety of roles, and possibly under duress due to the coercive control of these groups over local populations?
What are the comparative lessons on the differential legal treatment of criminal actors based on policy variables such as seriousness of the crime, degree of individual responsibility or impact on the victim?
How have transitional justice tools worked in combination with other interventions, including DDR, alternative livelihoods and psychosocial support, to enable exits from non-state armed groups and promote reintegration and reconciliation?

Deliverables

Project framework paper, which will include, among other things, key policy challenges in the case studies, common definitions of key terms, research agenda, and literature review on transitional justice approaches in contexts where non-state armed groups have controlled territory (10,000 words). Its first iteration will be as a discussion paper for the inception workshop, after which it will be updated to reflect the conclusions of the workshop. This document will help guide those involved in the project, ensuring everyone is on the same page, and is not for publication.
Three country case studies on Iraq, Nigeria and Somalia (8,000 words each)
Synthesis paper (7,000 words), and executive summary of the synthesis paper with policy recommendations (3,000 words)

[1] In 2015, for instance, the UN estimated that eight million people were living under ISIS-controlled territory in Iraq and Syria, where they were forced to “assimilate, flee or face death.” UN News, 2015. That same year, Boko Haram controlled an area in northeast Nigeria the size of Belgium, while also being present in northern Cameroon, southeast Nigeria and southwestern Chad. Hentz and Solomon, 2017.

[2] Mara Revkin, forthcoming.

[3] For instance, Iraqi tribes have expelled families of accused ISIS fighters from liberated towns in a form of unofficial collective punishment. Interview with UN official, 2017.

[4] In Iraq, all “fighting-age” men and boys above the age of 15 who are fleeing Mosul and Hawija in the offensive against the Islamic State are being mass-quarantined: https://www.hrw.org/news/2016/10/27/krg-men-boys-fleeing-fighting-arbitrarily-detained; and in Nigeria, men and women as well as children have been detained extra-judicially for screening procedures: https://www.crisisgroup.org/africa/west-africa/nigeria/nigeria-women-and….

[5] Vanda Felbab-Brown in UN DDR in an Era of Violent Extremism: Is It Fit for Purpose? Ed. By James Cockayne and Siobhan O’Neil, 2015, pp. 118.

[6] As Vanda Felbab-Brown has written, a DDR camp in Diffa, Niger, houses perhaps hundreds of individuals who either defected or escaped from Boko Haram. DDR facilities lack transparent admission and release processes, so it is difficult to distinguish between those who were enslaved captives of Boko Haram and those who joined willingly. See Vanda Felbab-Brown, “Under the hot Sahel sun: “Post”-Boko Haram challenges in Niger and Nigeria” (Brookings, 2017).

[7] All of the country case studies have cross-border implications, and as such the research will not be confined to only looking at dynamics within nation-state borders, but will also consider relevant approaches by bordering states (such as Kenya in the case of Al Shabaab, and Niger in the case of Boko Haram).